Drone Strike Casualties and the Laws of War

JURIST Guest Columnist Laurie Blank of Emory University School of Law argues that the recent claim of zero civilian casualties from US drone strikes in Pakistan may sound good at first, but indicates more concerning possibilities in US interpretation and adherence to the laws of war...

Last week, top US intelligence officials announced that US drone strikes in Pakistan had caused zero civilian casualties in the past year. The US has launched well over a hundred drone strikes against al Qaeda and Taliban targets in Pakistan since January 2010, and has killed hundreds of militants over the past few years.

The drone strikes are the source of heated debates regarding the numbers killedboth militants and innocent civilians. They also raise a number of interesting questions of international law, strategy and policy. Calls are made repeatedly both in the US and abroad for greater transparency regarding the nature of the targets, the process by which targets are identified and approved and the legal parameters of the program overall.

The CIA's claim of zero casualties now suggests we are not even at the point of healthy debate about the law, strategy and effects on the ground. Drone strikes against hard to identify militants operating and seeking shelter in and among civilianseven with the extraordinary surveillance capabilities and precision-guided weapons being usedsimply cannot leave the civilian population entirely unscathed.

If the US government is saying that not a single innocent civilian has been killed, then there must be a great deal more unknown to the public about the drone strikes. This raises some serious problems. Two fundamental legal principles guide drone strikes: attacks must be directed only at legitimate targets and any anticipated civilian casualties must not be excessive in relation to the anticipated military gain from the attack.

Who is being targeted and how are the determinations being made? International and domestic law requires that any attack distinguish between legitimate targets and innocent civilians. There is no doubt that the intelligence gathering and long-term surveillance capabilities of drones offer heightened opportunities to fulfill these obligations. Drones can loiter over a target for hours, even days, allowing operators and decision-makers to determine if he or she is indeed the person they are seeking and is engaged in hostile activity.

Even these high-tech systems are not perfect, however. Missiles can go astray, children can be hard to spot or be hiding in the target building unbeknownst to the drone operatorsany number of errors or unexpected developments can lead to unanticipated civilian casualties. That is an unfortunate and tragic aspect of combat.

In these circumstances, the claim of zero casualties suggests two potential scenarios, both of which are highly troubling. First, the CIA's definition of who constitutes a legitimate target could be significantly broader, leading to fewer casualties considered to be "innocent." Thankfully, there is currently no evidence to support this disturbing suggestion. Second, the CIA's process for identifying and determining who is a legitimate target may not be based on sufficiently precise and demanding criteria. If so, calls for greater transparency regarding the decision-making process (not with an eye to revealing protected source information, but just regarding who we are targeting and why) are essential.

Second, the claim of zero casualties also suggests that the linkage between strategy and law is becoming unhinged. Counterinsurgency strategy and mission imperatives appropriately seek to eliminate civilian casualties as much as possible in the fight for "hearts and minds." However, international law does not require no civilian casualtiesindeed, the law accepts that there will be incidental casualties from lawful attacks, a tragic but not criminal consequence of war. The combination of the unmanned aerial vehicle's highly precise targeting capabilities and strategic needs to reduce civilian casualties has led to a growingand mistakenperception that any civilian deaths are unlawful. The claim of zero casualties, along with the implied affirmation of such a standard, threatens to further cement this faulty approach.

It may seem that innocent civilians will be the beneficiaries of this developmentin fact, the opposite is true. A military force facing such a zero casualty standard will either disregard the law entirely as unreasonable, endangering civilians in the combat zone, or will refrain from military operations altogether to avoid legal violations, leaving its own citizens undefended from attacks. Both options leave innocent civilians unprotected and in danger.

Zero casualties may sound good, but it is not nearly as good as it sounds. In fact, it tells us that we know a lot less than we thought about the drone strikes and that the process demands significantly greater attention than the results might indicate.

Laurie Blank is the director of the International Humanitarian Law Clinic at Emory University School of Law and was one of the principal founders of the clinic in 2007. Previously, she was a program officer in the Rule of Law Program at the US Institute of Peace in Washington, DC, where she ran a working group on New Actors in the Implementation and Enforcement of International Humanitarian Law.

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